A Los Angeles rape conviction has been tossed by an appellate court, citing an 1800s law stating that a person may be charged with rape by impersonation if the woman is married – but not otherwise.
Fullerton Criminal Defense Lawyer Houman Fakhimi understands that now, lawmakers are vowing to scrap the law entirely in favor of a new one that would make rape by impersonation a crime regardless of the victim’s marital status.
Cases involving allegations of rape by impersonation are particularly difficult for prosecutors to win, mostly because they tend to involve consensual acts by two adults. The element that makes this act a crime is that through the deception of the defendant, the alleged victim believed the defendant was someone he was not. Proving this, as any prosecutor will tell you, is extremely tough. For example, how does one determine in a court of law what a person knew or didn’t know? If an alleged victim by all accounts appears to consent, how can the defendant be responsible for guessing what she knew or didn’t know?
In our experience, this type of allegation is likely to arise when an accuser later regrets the action or feels she has to explain something to her significant other. Saying she believed the defendant to be someone else relieves her of personal responsibility in the matter.
These cases tend to be relatively rare due to the fact that the burden of proof in a criminal case is so high. However, the publicity of this case, accompanied by the potential change in the law, could make such allegations more common. This is our concern.
In this particular case, an 18-year-old woman alleged she had fallen asleep with her boyfriend next to her. The boyfriend reportedly then left. The defendant, an acquaintance, then reportedly entered the dark bedroom in the middle of the night while the woman was sleeping and proceeded to have sex with her. The woman said she initially believed the man was her boyfriend. She said she only began to resist when she realized it was someone else.
A key piece of evidence in this case was a statement given by the defendant to the police, in which he said it was probable the woman wrongly assumed he was her boyfriend.
California Penal Code 261 describes rape as when an individual engages in sexual intercourse with another person and the act was completed either against one person’s will or without one person’s consent by means of force, violence, duress, menace, fear of bodily harm to ones self or to another, fear of retaliation or fraud.
In this case, the defendant’s first trial resulted in a hung jury. He was convicted during a second trial last year.
But then just after the first of this year, California’s 2nd District Court of Appeal concluded that the defendant’s actions didn’t meet the actual definition of rape under state law because the law, written in 1872, indicates that a person who obtains consent for sex by pretending to be someone else is only guilty of rape if the victim is married and the defendant is pretending to be the spouse. This particular victim was not married.
Prosecutors have indicated they may seek a third trial for this defendant. However, if they did, they would have to omit the instruction regarding an unconscious rape victim not being aware of the essential characteristics of the act due to the fact that the defendant tricked, lied to or concealed information from her.
Legislators are now saying that this is an arcane law, and they intend to introduce a law that would close this loophole. However, it wouldn’t affect this case because the law wouldn’t have been in place at the time of the alleged incident.
If you are accused of rape, you need to seek legal counsel immediately, as a conviction, regardless of the circumstances, could result in potentially years behind bars. Say nothing to investigators, and call us first.